In this cause one question only is raised for determination by this court, and that is, whether that part of the statute of June 22d, 1867, which gives to the owner of live stock “double the value of hi's property injured, killed, or destroyed” on a railroad track, in case the same is not paid within thirty days after demand therefor is made upon the company, is “ the law of the land.” This question is one of importance. It involves an inquiry into the individual rights of property — the inquiry whether the title to the same can be divested without the assent of the owner, and the question of legislative power over such prоperty. The term right in civil society is defined to mean that which a man is entitled to have, or to do, or to receive from others within the limits prescribed by law.
But what is the law in regard to private property? In a historical examination of the question we find that man in the rudest state of nature was not without some notions of exclusive property, and that jurists in every age, as civilization advanced, have maintained that what a man has obtained by the honest exertion of his own mind, or his own hand, is by natural right his own property. Indeed, it may be said, that the protection of this right is the main seсurity to the enjoyment of life.
Burlamaqui (Politic c. 3, §15) defines natural liberty as “ the right which nature gives to all mankind of disposing of their persons and property after the manner they may judge most consonant to their happiness, on condition of their acting within the limits of ohe law of nature, and sо as not to interfere with an equal' exercise of the same rights by other men; ” and therefore it has been justly said, that “absolute rights of individuals may be resolved into the right of personal security — the
Cooley (Con. Lim., 358) says, that “ the right of private property is a sacred right,” not introduced as the result of concessions, constitutional compacts, etc., but it is a fundamental law.
Then if experience can be taken as the guide, and expediency as the test, in solving the problem of government, it may be laid down as an axiom, that in every advanced step of mankind from the rudest state of nature to the more polished and refined civilization, the one leading purpose of the functions of government, as applied in each step to a higher civilization, was to secure, in greater degree, the natural rights of each individual in the social compact; and, therefore, in all the changes оf government, whether by constitution or otherwise, this ancient law of individual right was the sacred shield of protection to life, liberty, and property. It is a fundamental principle lying beneath and behind all edicts, constitutions, and statutory law, and has become an established maxim in the doctrine of the common law. Webster says that “written constitutions sanctify and confirm great principles, but the latter are prior in existence to the former.” 2 Webster’s Works, 392. Hence, it may be said with great propriety, that a constitution “ measures the powers of the rulers, but it does not measure the rights of the'governed; ” that it is not the origin of rights, nor the fountain of law — but it is the “ framework of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits, and modes of thought.” Cooley Con. Lim., 37. The People v. Hurlbut,
This common law right of property is secured by our constitution. It declares that “no person shall be deprived of life, liberty, or property, without due process of law.” The terms “ due process of law ” and “ the law of the land ” — one or the other of which is found in all constitutions of the states — are said to mean the same thing; and it is quite clear that they are indifferently used in constitutions for the same purpose. They are said to refer to a pre-existing rule of conduct, and designed to exclude arbitrary power from every branch of the government. State v. Doherty, 60 Me., 509. Norman v. Heist, 5 W.and S., 171. The State v. Simons,
It is; however, true that, subject to the qualified negative of the governor, the legislature possesses all the legislative power of the state; but as it is said in Taylor v. Porter,
Now, from a review of the law in respect to private property and the limitations of the constitution, it seеms clear, that when a legislative act interferes with the title to the property of the citizen, or with his enjoyment and disposal of such projierty, and such act is called in question as unconstitutional and void, its authority and binding force must be tested by the fundamental principles in respect to the rights of private property, the constitutional limitations and the maxims of the common law, which constitute the basis of our system of laws; and it also seems clear that, from the earliest history of civil society, down through all ages, one of the leading functions of government has been to protect life, liberty, and private property of the individual as sacred. Then, upon what principles or theory can these absolute rights of individuals be infringed or affected by legislative act, or the title to private property be divested and be appropriated by the government without the assent of the owner?” The answer to the question is that, when demanded by the public exigencies, private property may be taken, either by right of eminent domain or by way of taxation, and this modification of the law of natural right becomes an absolutе necessity in the maintenance and administration of the government; but in exchange for this sacrifice of property, the individual receives the protection and security guaranteed to him by the government; and when property is taken by right of eminent domain, it is said to be l£ a universal and permanent proposition in every well-regulated and properly administered government, whether embodied in a constitution or not, that private property cannot be taken for strictly private purposes at all, nor for public without just compensation.” The People v.
The above seems to be the only instances in which the governmеnt justly has the right to divest title to the property of the citizen, and therefore it may be stated as an established maxim in the polity of the state, that the legislative authority cannot reach the life, liberty, or property of the individual, except when he is convicted of crime, or whеn the sacrifice of his property is demanded by a just regard of the public welfare. Taylor v. Porter,
Again, it seems clear that the statute in question is incompatible with another provision of the constitution. It will not be pretended that the act was intended to define a statutory criminal offense. Still, it is impossible to regard the excess beyond the value of the property in any other light than a penalty, not resting in contract, but a penalty or fine for the purpose of punishment; but this penalty or fine is by the statute given to the party claiming damage for the accidental loss оf his property, and hence the act must come in conflict with that provision of the constitution which declares that “all fines and penalties,” etc., “shall be appropriated exclusively to the use and support of common schools.”
If, however, the legislature has authority by enactment to declare that, for an injury of the kind in question the injured party shall be entitled to receive “double the value ” of the property injured, then, does not the authority imply the power in the legislature to make it a hundred times the value of the property; and the
It may be observed in conclusion that, although the inquiry whether a legislative act is unconstitutional assumes an importance from the fact that it is not only a matter of delicacy, but also because it is an inquiry into the boundary lines of the power given to a sеparate department of the government, yet, “where it is clear that the legislature has transcended its authority, it is imperatively required of the courts ” to maintain the paramount authority of law; and after a careful investigation of the question involved in the inquiry first propounded, it sеems clear that the statute in question is repugnant to the fundamental principles in respect to individual rights, the limitations and guarantees of the constitution, and the maxims of the common law, and therefore the judgment of the court below must be reversed, and the cause remanded for a new trial.
Reversed and remanded.